Search This Blog

Tuesday, March 31, 2009

(This was published by The Malaysian Insider as as "They play, we pay")

The Cost Of Politics

The UMNO Assembly has come and gone and, as has been the case for at least the last three assemblies, in its wake many of us have been left uneasy and in a state of disquiet. Seeing the inner workings of the Leviathan’s mind is never an easy thing, even at the best of times. And these really are the worst of times.

Power-lust has put a debilitating strain on our national institutions; they are in the mind of the public nothing more than lifeless marionettes in a caricature of democracy. The accumulation of money and influence has for some time now been the greater social good in the minds of many of those who claim the right to lead us. Governance has been wholly enslaved to the perverse politics required to feed this monstrous craving.

One does not have to go to great lengths anymore to demonstrate these conclusions. After this last assembly, it is a matter of public record. Reading the speeches made, I was struck by how for many of those who attended the assembly there is no other way other than the UMNO way that they are familiar with: exclusive privilege through patronage.

While it could be said that these are matters concerning the internal workings of UMNO and as such really none of my business, this cannot be the case when UMNO stakes a claim on the premiership of this nation as it does. The Federal Constitution does not provide that the President of UMNO must be the Prime Minister. That is however the understanding within the Barisan whose component parties are compelled to leave the choice of that individual to UMNO’s admittedly skewed method of electing its President.

This state of affairs is made more complex by the expectation on the part of UMNO that it is entitled to govern this nation, a viewpoint it gives life to through its control over the wider system of governance. The experience of the rakyat with matters of state has been a disappointing one and the general belief is that all constitutional bodies and agencies of the state will act to further the interests of UMNO and, where interests overlap, the Barisan.

Seen in this light, the internal workings of UMNO are a matter of national concern; the national interest underscoring the appointment of a Prime Minister is ultimately left vulnerable to those who are able to successfully wield influence at the UMNO Assembly.

As I have written elsewhere, this is not the scheme envisaged by the founders of the Federal Constitution, which instead puts in place an appointment process grounded on His Majesty the Yang di-Pertuan Agong’s judgment as to who it is that commands the confidence of the majority of members of the Dewan Rakyat.

For many in UMNO and the Barisan however, political convention must trump constitutionalism. Both the party and the coalition have made this clear in the way in which concerns over the appropriateness of Datuk Seri Najib Razak as Prime Minister are being avoided.

This cannot be right, the unease that the failure to take appropriate steps to clear the air has given rise to is no small matter. It pertains directly to public confidence in the due administration of this nation. If the positions were reversed, the same rationale would apply: Datuk Seri Anwar Ibrahim would not be an appropriate candidate until the accusation of sodomy by Saiful Bukhari was dealt with.

Public confidence is crucial to our survival. We are a nation in crisis facing external challenges of great magnitude. Part of the reason for this is the sustained maladministration that we have had to endure over a prolonged period of time. Put bluntly, the nation is not firing on all pistons and we are not nearly as prepared or resourced to deal with what we will have to be when the full significance of world events hits us.

The choice of Prime Minister at this point is a crucial one. In addition to addressing Malaysia’s response to the global economic crisis and its impact on the rakyat, the next administration must address two objectives that are vital to our continued survival. The first of these is the serious deficiencies in our current process of general and state elections. These go deeper than the issue of perceived Election Commission and Police bias to the more fundamental question of whether democratic purpose is being achieved through a first-past-the-post system and the “weighted” delineation of constituencies. Electoral ethics must also be made a priority with scrutiny of the continued value of racial ideologies that serve no purpose than to divide us. True democratic process is the only way in which this nation can ensure that it remains competitive.

Secondly, the foundations of governance must be shored up. The doctrine of separation of powers must be re-entrenched to ensure the due application of checks and balances. For this, reforms must be carried out at more than a superficial level. For this to occur, constitutionalism must be breathed into the organs and agencies of state once more. The Judiciary must be liberated from any and all political influence and be made as capable as it once was, with public confidence in the institution. The legislatures of the nation must be allowed to return to previous glory when debates were permitted without fear or favour and the legislative chamber served a purpose higher than rubber-stamping the dictates of majoritarianism.

Above all, the Executive must be made accountable once again.

This is what we need if we do not want to see this nation failing. Momentum however threatens to propel us forward in that direction. The brakes need to be applied and our direction changed, impelled forward by the will of the rakyat with the Federal Constitution serving as our roadmap.

The question we must confront is who it is that will be able to lead us in doing that.

If I wonder whether Datuk Seri Najib considers himself capable of doing this, it is because he has said precious little to suggest that he has considered the precarious situation we are in. I am also wary of the political forces that paved his way to the top that will impede him much in the same way as they did the out-going Prime Minister. There is also the matter of public sentiment concerning various matters that he either has been, or is seen to have been, involved in.

Ironically, the one person in UMNO who holds to a need for serious reform at all levels, Tengku Razaleigh, received only one nomination and could not contest the presidency. This was an error on the part of UMNO in my view.

My fear is that the nation will have to pay the price.

Malik Imtiaz Sarwar is the current President of the National Human Rights Society (HAKAM) and a lawyer. He has been at the forefront of efforts aimed at promoting constitutionalism and the Rule of Law. His blog ‘Disquiet’, and weekly column of the same name with the Malay Mail, are widely read

Wednesday, March 18, 2009

I was criticized recently for being biased in my view of the political landscape. The basis of this criticism was a perceived unwillingness on my part to be as critical of the opposition as I was of the government. As this was not the first time, and as I had read similar observations made of other commentators whom I view as being fairly objective, I spent some time reflecting on what it is I had written in the past and why. I also gave some thought to why it is I write.

I am not a member of a political party. I cannot even honestly say that I am a supporter of any particular party. It is true that I have in the past acted as a lawyer for some of the Pakatan Rakyat parties and for opposition members, my role in that regard was limited to that of an advocate. That I have not acted for the Barisan Nasional parties is easily explained by my not having ever been retained to do so.

As a general rule, I write when I have something to say about a particular issue of significance. My training and exposure affords me a perspective that may be of assistance to those seeking to form a view. A weekly column in the Malay Mail and a monthly column for the Malaysian Insider has made this process more regimented, providing the need for a much welcomed discipline on my part. Writing is a skill that requires practice, much like any other.

In writing, my desire to espouse a viewpoint is self-limited by a narrower interest in policy and frameworks, in particular legal and constitutional. I am concerned not so much with what people say or do but with the permissible limits of their doing so.

This has quite naturally focused my attention on matters of governance, primarily at the Federal level. Though I have written at times about matters within a particular state, my relatively infrequent commentary has been largely confined to matters of constitutionality. Notable instances have been comments on the so-called Trengganu crisis last year and more recently, the Perak affair.

Concerned as I am with matters of governance, it is not surprising that I have tended to scrutinize Executive action and its impact. In the nature of things, consideration of Executive action has in turn necessitated a deliberation of the politics underlying Executive action.

An aim to ensure comprehensive analysis has required examination of the agencies through which Executive dictate has been, or has been perceived to be, effected. This has unavoidably led to commentary on the police force and other federal agencies as well as the Judiciary and other constitutional bodies.

I will concede that much of this commentary has not been complimentary. This has however not been because I am anti-government. I do not condemn merely for the fact of what I condemn having been precipitated by the government. I condemn because what it is that I condemn is, in my view, wrong in principle and its long-term implications of grave concern. Being critical does not necessarily arise from the animosity that being anti-anything requires.

Take, for instance, the tabling of the motion to suspend the Member of Parliament for Puchong, Gobind Singh. The decision to allow for debate on the motion on an urgent basis was a matter within the discretion of the Speaker. It could be said that it was also within the discretion of the Speaker’s to not allow Gobind Singh to address the House despite the motion being aimed at him and carrying with it punitive consequences was also within his discretion. Having said that, it is my view that this decision of the Speaker was and is highly questionable for having manifestly denied Gobind Singh of his right to be heard in his own defence.

My criticism in this regard is not intended to reflect my being anti-Barisan or anti-government. It is instead borne out of a commitment to the fundamental principles upon which democracy was established in this country. I would hold the same view if the motion was against a Barisan Member of Parliament and he or she was denied an opportunity to be heard. The Rule of Law is not a matter of expediency.

Where I have asserted that the Executive has occasioned abuses of power, and no such assertions have been made against the opposition, at the Federal level the opposition has no such power to abuse. At the state level, in my view, no such abuse has been demonstrated. That is understandable; the Pakatan Rakyat state governments have no influence over federal agencies or constitutional bodies.

If the Pakatan were ever to form Federal Government, it would be the subject of scrutiny in very much the same way as the Barisan is at the moment. Civil society has promised that it will have higher expectations of the Pakatan. It has already set the tone with its scrutiny of the Pakatan state governments.

And where I have expressed a preference for the Pakatan, then it is only because I think that it is not as entrenched in its politics as the Barisan is and, unlike its counterpart, is still capable of distinguishing its own political needs from those of the nation as a whole. Though it is not without its own faults, it espouses ideals that the Barisan seems to have abandoned some time ago. To the great majority of this country, a strong and accountable system of democracy is more than just a matter of political convenience.

It is far too convenient to dismiss criticism for it being anti-government without regard to what it is that is being said. No government is infallible, least of all one that has virtually untrammeled powers. Confronting the painful realities is the only way in which we can progress, it is the price of nation building.

Distilling it to its essence, Karpal Singh is being prosecuted for stating a legal opinion and for indicating an intention to seek remedy from a court for his clients.

I was in court yesterday and had the benefit of hearing the charge read out to him. The charge of sedition is in respect of certain statements made during a press conference on 12th February 2009, held just after the Perak controversy erupted. These statements included the following excerpts reproduced by Malaysiakini:

"The allegedly seditious statement read out this morning was from a partial transcript of a press conference held at the law firm, during which Karpal had said Sultan Azlan Shah could be taken to court in his official capacity for authorising the removal of Pakatan Rakyat Perak Menteri Besar Mohd Nizar Jamaluddin.

Based on the underlined parts of the transcript, Karpal is alleged to have said: ‘With that ruling of the federal court which has stood the test of time for 32 years, beyond a pale of a doubt, the Sultan of Perak has contravened Article 16(6) of the constitution of the state of Perak.

‘In my view, until such time the assembly has invoked the provision of Article 33(1), both Mohd Osman Jailu and Jamaludin Mohd Radzi remained PKR assemblymen, together with Jelapang assemblywoman Hee Yit Foong remaining with the DAP until her resignation letter was subjected to determination by the assembly pursuant to Article 33(1), thereby causing the Pakatan Rakyat to have 31 members in the assembly of 60 members.

‘It cannot therefore be said that the Sultan of Perak acted intra vires (when) in fact (he) acted ultra vires Article 16(6) when he determined that Menteri Besar (Mohd) Nizar Jamaludin had ceased to command the confidence of the majority of the members of the legislative assembly and was therefore required to tender resignation of the executive council over which he presided including his own resignation.

‘Clearly the Sultan of Perak cannot invoke his powers under Article 16(1) which states [His Royal Highness shall appoint an Executive Council] to appoint a Barisan Nasional executive council with a new menteri besar and a new government. The government of Menteri Besar Nizar Jamaludin still had constitutional supremacy and legitimacy. The actions of the Sultan of Perak are clearly premature.’

These statements give a sense of the nature of what Karpal said and of what the senior lawyer was trying to communicate. It would not be unreasonable to say that the nature of his observations was similar to that of the numerous opinions on the issue that were published at the time.

It is true that Karpal did go on to speak about the remedies that Nizar could see and explained that these could and would be procured by way of an action againt His Highness, Sultan Azlan Shah. Karpal however explained why this was so and pointed to precedent in the course of his explaining his position.

Looking at this in the objective and unemotional way that one assumes the authorities did, it seems that the State will no longer tolerate any expression of opinion concerning the Rulers, and presumably the other matters with which the offence of sedition is concerned. In this regard, section 3(1) of the Sedition Act defines a “seditious tendency” as a tendency:

(a) to bring into hatred or contempt or to excite disaffection against any Ruler or against any Government;

(b) to excite the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure in the territory of the Ruler or governed by the Government, the alteration, otherwise than by lawful means, of any matter as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Malaysia or in any State;

(d) to raise discontent or disaffection amongst the subjects of the Yang di-Pertuan Agong or of the Ruler of any State or amongst the inhabitants of Malaysia or of any State;

(e) to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia; or

(f) to question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Article 152, 153 or 181 of the Federal Constitution.

The impact of the decision to prosecute is yet to be fully understood, in part because the charge did not explain the seditious tendency that is the foundation of the charge. It does however appear that the prosecution case is founded on the statements having excited disaffection against His Highness, the Sultan or having questioned a matter of prerogative. Much has been said about the decision of the Sultan having been made pursuant to prerogative discretion.

How this will be reconciled with the proviso in section 3(2) is however not clear. This proviso reads as follows:

(2) Notwithstanding anything in subsection (1) an act, speech, words, publication or other things shall not be deemed to be seditious by reason only that it has a tendency -

(a) to show that any Ruler has been misled or mistaken in any of his measures;

(b) to point out errors or defects in any Government or constitution as by law established (except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) otherwise than in relation to the implementation of any provision relating thereto) or in legislation or in the administration of justice with a view to the remedying of the errors or defects;

(c) except in respect of any matter, right, status, position, privilege, sovereignty or prerogative referred to in subsection (1)(f) -

(i) to persuade the subjects of any Ruler or the inhabitants of any territory governed by any Government to attempt to procure by lawful means the alteration of any matter in the territory of such Government as by law established; or

(ii) to point out, with a view to their removal, any matters producing or having a tendency to produce feelings of illwill and enmity between different races or classes of the population of the Federation,

if the act, speech, words, publication or other thing has not otherwise in fact a seditious tendency.

I recognize that the State has a duty to ensure the freedom to express is not abused. The right of the State to intervene is however limited to where intervention, and this must be by way of federal law, is necessary in the interests of democracy. Where this is the case, the extent of the intervention must be proportional to the threat that is sought to be dealt with. What this means is that the State cannot erect a complete barrier to expression, a state of affairs that the legislature recognized in enacting the proviso in section 3(2). Expression on sensitive issues is essential in certain circumstances.

The prosecution does not appear to have an easy case on its hands. It must show that Karpal's statements did disclose a seditious tendency and, if so, did not fall within the ambit of the proviso. From comments made by Karpal that have been carried by the media, it appears that he is not too worried in view of the way the sections are to be understood and applied. Seen from this perspective, it may be premature to say that the freedom of expression has been curtailed; a court is yet to make a decision on the subject.

Having said that, the decision to prosecute Karpal will undoubtedly have a chilling effect on free speech. Many will think that if Karpal could be prosecuted for stating a legal opinion, then it is possible that others may be charged for less. Against a backdrop of other individuals being charged for comments left on internet site, this would not be an unreasonable conclusion.

It appears that the motion is grounded on Gobind having abused parliamentary process and privilege in accusing the Deputy Prime Minister of being involved in the murder of Altantuya Shaaribuu.

Leaving aside the questions of whether the matter ought more properly be taken up before the Committee of Privileges and whether the suspension of the Puchong MP for a day on 12th March brought the matter to a close, it is significant that a debate of the motion must necessarily involve discussion of whether Gobind Singh had conducted himself inappropriately.

This would necessarily involve a consideration of whether the making of the accusation was warranted which in turn would involve a consideration of the very matters that the Deputy Speaker had directed Gobind Singh not to speak about on the basis that the matters were “sub-judice”.

If the sub-judice ruling holds, then the motion cannot be debated.

The motion is of punitive nature, it aims at suspending Gobind Singh without allowances and privileges. The MP must therefore be given every opportunity to state his position squarely. Additionally, all other MPs must be given an opportunity to debate the motion fully in order that the issue is fully ventilated. As such, the Speaker cannot limit the scope of debate by ruling that reference to the Altantuya case and its investigation is not permitted. This would be akin to the MP being asked to step into a boxing ring with his hands tied behind him.

If the Speaker allows full ventilation of the issue, it would not only be inconsistent with the ruling of the Deputy Speaker on 12th March and other prior rulings that have impeded the raising of the Altantuya matter in Parliament, it would also permit the Altantuya matter to be raised in Parliament.

I am not certain who stands to lose more if the motion is permitted to be debated.

Tuesday, March 10, 2009

Shortly after the Perak affair commenced, I was at an open house function and met a man of influence. In the course of our conversation, he informed me that he had graduated from the Royal Military College. Not surprisingly, the situation in Perak came up. We spoke about the disappearance, and subsequent reappearance, of the three controversial former opposition members and the move to take over the state government by the Barisan Nasional and the Sultan’s refusal to dissolve the Legislative Assembly and soon found ourselves pondering the ethical dimension of what had transpired. At one point, perhaps because of his background, he said. “Politics is like war, all’s fair. We must expect it to get bloody.”

I understood what he meant.

It could be said that political campaigns have to be strategized like military campaigns. There has to be an objective, thought must be given to the resources available for deployment and tactics planned with a view to achieving that objective using those resources. In this, one can expect bloodshed as such is the nature of war. Losses are anticipated, even acceptable, as a factor that informs the overall strategy.

The analogy is however only apt at a superficial level. When causes and methods are considered more closely, it is obvious that they are vastly different.

Wars must only be waged for lawful cause and in a lawful manner. The United Nations Charter limits such cause to self-defence though there is an argument to be made that customary international law has expanded the scope of justifiable conflict to include humanitarian intervention such as was seen in the Balkan conflict. Further, the Geneva Conventions and other treaties put in place the rules by which wars are to be fought by reference to what is permissible and what is not. Such wars are that are fought for legitimate cause in a permissible manner are just wars, and for that are events of honour. Those who fight them are honourable.

Politics is however by its nature far from honourable. In this we must understand that a distinction has to be drawn between a cause for which politics is enlisted and politics itself for there may be noble causes in whose aid politics is enlisted.

Political campaigns are not aimed at self-defence, their twin objectives being self-promotion and the disabling of a political opponent with a view to furthering self-interest. This opponent is not necessarily someone from another organization, as political causes involve fighting friends as much as it does enemies. Loyalty and honour have very little to do with anything; they could in some situations even be obstacles to the political process. This has been more so in recent times; those politicians who have stuck to principle and been content to let action speak louder than words have suffered politically for the fact.

Where political hegemony is involved, the difference is even starker. This allows for control of the “system” and the hijacking of governance. In having such control, political objectives do not have to be achieved for lawful purpose or in a lawful manner and the ends will always justify the means.

For all of this and more, politics is not like war. To draw the comparison is to do an injustice to, even insult, those brave men and women in the Malaysian armed forces. They are patriots who, unseen, keep this nation and our way of life safe.

In contrast, save for small minority, our politicians worship at the altar of personal ambition and routinely sacrifice principle for gain. Were it otherwise and politicians understood that being elected to office was a way in which they could truly serve this nation things would be very different. For a start, the Internal Security Act and a host of anti-democratic laws would no longer be on the books, institutions that we have every right to expect to act without fear or favour would be left alone to act as they should, and we would be hopeful for our interests being looked after as they should.

Democracy was never meant to be a ladder for ambitious politicians. Its elections were aimed at ensuring that the rakyat were able to vote to office capable representatives who understood them best and who would do what was necessary to protect their interests and those of the nation. These elected representatives were intended to be the voices of reason that would help shape this nation and point it in the right direction for its journey into our collective future.

Encouraged by a lack of accountability, in the hands of our politicians democracy has become a spectator sport, a winner-take-all gladiatorial blood-fest in which the rules themselves have become weapons in the hands of oppressors who prey on the weak and vulnerable.

In the political feeding frenzy that has taken centre stage, it is the person on the street who suffers the most. Though we tend to blame this on the politicians, we overlook that politicians have been able to get away with what they do for one reason: at some point we stopped caring that our politics lacked ethical foundation. We were satisfied as long as we had opportunity to enlist politics for our individual benefit. Those who did not were dismissed in our minds as acceptable collateral damage.

In doing so, we became a part of the problem.

Politics like war? It would be more in our interests if that were so as limits would be respected and actions circumscribed by honour. However, until we take ourselves out of the equation and look to the nation’s interests, that will never be the case.

Sunday, March 8, 2009

Discussing the Perak situation with specificity is, by this stage, a difficult thing to do. So much has happened so quickly. Nuanced actions and counter-actions, some of it in uncertain legal terrain, and relatively scarce details have made it precarious to consider certain key events – the legal action against the Speaker and its incidents, for instance – with the depth that only certainty would allow for.

Having said that, whatever the specifics may be and whoever may be right as to the validity or legality of certain aspects of the unfolding saga, when considered from a broader perspective and with reference to the fundamentals of democracy, I do not think that the situation in Perak is very complicated at all. As Tengku Razaleigh recently observed, a chain-reaction of illegality has left Perak possibly without a legitimate government and the Constitution a dead piece of paper.

I was too young to fully appreciate the terrible impact on democracy that the events of 1987 and 1988 had. Understanding came later, as I learnt to see what needed to be seen: the supremacy of the Constitution, the separation of powers and the check and balance it is aimed at, the independence of the judiciary and, correspondingly, the legislature. But even as my awareness of what had happened and how it had happened increased, I rather naively found myself thinking that it was unlikely that we would ever see anything of the likes again. Those events had simply been too heinous and the injuries inflicted on this nation too serious to ignore, even by those who had been responsible and those who would possibly follow in their footsteps.

Or so I thought.

The savagery of what has happened in Perak and the utter disregard of consequence on the part of those orchestrating the campaign go far to show how foolish I was to have believed that all of us, without exception, recognize that some costs are too great and for that, even blind ambition has its limits. It is clear now that this is not necessarily the case; for some, even the nation itself is expendable.

In saying savagery, I recognize that there has been neither bloodshed nor preventive detentions, though it is still too early to say for sure that things will stay that way. The incitement carries on, and mobs are being driven to frenzy to the throb of the war drums. Amidst the calls for blood, bullets have been sent, a disabled parliamentarian assaulted and some of his colleagues battered. The police have apparently too much on their hands to move with the speed that they are capable of and, as such, as things stand serve no useful role as the deterrent that the situation sorely requires.

Violence has however been done; to the Federal and State constitutions, to the Rule of Law and to all that these fundamentals represent. War has been waged on democracy itself.

I can think of no other way to characterize events.

As thing stands, the Speaker is still the Speaker. He has been at all times vested with the full powers of his office and the discretion to exercise those powers. He may have committed mistakes in arriving at certain decisions, but those are matters for the Legislative Assembly itself or, where legal limits have been transgressed, for the courts whose powers in this regard are limited by reason of the separation of powers. Until corrected, the Speaker’s decisions stand, be they the acceptance of the resignation of the three members who crossed the floor, the issuing of the show cause notices to the alleged usurpers of power and the effecting of their suspension, or the calling of the emergency sessions of the Assembly.

And yet under the hand of the Executive, in a manner reminiscent of the locking up of the Supreme Court in 1988 the Legislative Assembly itself was put out of bounds to members of the Assembly, This was done at the instigation of the State Secretary, an officer of the executive and as such its representative, with the assistance of a police force duty bound to protect the system of governance and associated freedoms put in place by the constitutions of this nation.

In doing so, the Executive laid siege on the Legislature. The sight of the Federal Reserve Unit barring the way into the Legislative Assembly, fangs bared and water cannon poised, was as close a physical depiction of democracy being taken hostage as we will ever see. The underlying intention of the exercise brings this further into relief. It was apparent that the Assembly had to be prevented from meeting for as long as it took for the lawyers to do what they could in court. Injunctions against the Speaker had been applied for. Once these were granted, the process that the Speaker had started would be brought to a halt.

The fact that the injunctions had been applied for shows clearly how far democracy was subverted. The making of the applications underscores awareness on the part of those orchestrating the campaign that self-help was not permissible. The validity of the Speaker’s actions had to be tested before a court of law. If they were not needed, the injunctions would not have been sought.

Despite this appreciation of the obvious, the might of the state was brought to bear. A federal agency was brought in and tasked to do what it was not mandated by law to do: keep the Assembly at bay to protect the interest of a coalition of political parties.

There is no law that allows police officers to deny members of a legislative chamber access to that chamber for the business of Legislature. It is not for any police officer to unilaterally determine that the business being conducted is not within the ambit of the legislature, no matter who might say it is. What the police force did was not justified in law. No crime had been committed. Though the gathering masses was reason enough for a police presence, breaches of the peace did not occur nor were orders to disperse issued, unsurprising given that the focal point was the denial of access to the Legislative Assembly.

It is glaringly obvious that confronted with a scenario that left it vulnerable to a tactical maneuvering of legislative procedure, and an inability to resolve the imbroglio to advantage, the Barisan Nasional at the state and federal level collectively took the law into its own hands. The plan to capture Perak had run into a brick wall and rather than go around it, they decided to blow it up and everything else with it.

The situation is comparable to a hypothetical scenario in which Pakatan Rakyat Members of Parliament barricaded Parliament House to deny Barisan Nasional Members and the Speaker access so as to prevent them from legitimately making a law that they would otherwise have. The only difference is if that had occurred, the Barisan Nasional would have denounced the exercise as an attempted coup d’etat and punished those involved to the full extent of the law at its disposal.

It does not make any difference that that the Barisan Nasional forms the Federal government of the day and is in a position to direct the police force; like all other institutions, these institutions are bound to act constitutionally and in accordance with the law. Malaysia is still a democracy predicated on constitutional supremacy. The expectation that all affairs will be conducted to the exclusive convenience and the advantage of the Barisan Nasional and its leaders is more suited to a dictatorship in which the Rule of Law means nothing.

Through the last week Malaysians have borne witness to a shameless display of belligerence and arrogance. We have heard a senior minister describe the emergency session, held by necessity under that now immortalized rain-tree, as “uncivilized”. Another senior minister described the Speaker as a ‘boy’. Though in line with the other ridiculous observations of ambitious UMNO leaders that Malaysians have had to endure since the beginning of the Perak affair, they do little to mask the obvious; that the Barisan Nasional appears to see no limits to what it is permitted to do to achieve its objectives.

And if it could do this in one state, what is to stop it from acting in the same way in other states or at the federal level. Judging by the way in which it has responded to criticism over its actions these past few weeks, it would seem nothing much. It is manifest that the Barisan Nasional considers itself a law unto itself.

That is the painful truth that lies at the heart of Tengku Razaleigh’s declaration that the Constitution is dead.

Tuesday, March 3, 2009

The Prime Minister has declared that the anticipated power transition to Datuk Seri Najib Razak will occur as planned. The media has reported this and other news items pertaining to the subject as a transition of Prime Ministers. If this is in fact what the Prime Minister has proclaimed, and it is not apparent whether the Prime Minister had limited his remarks to the transition of the UMNO presidency, then it calls for a re-examination of the way in which governments are formed under the Federal Constitution.

For practical purposes it can be said that Parliament is dissolved when a general election is called. The government of the day, formed by the majority of the member of the Dewan Rakyat, comes to an end when this occurs, at least in theory. A caretaker government is charged with the responsibility of governing the nation in the short period before a new government is formed. This occurs when the Yang di-Pertuan Agong appoints a member of parliament to be the Prime Minister. The person His Majesty appoints is the person who in His judgment is the person commanding the confidence of the majority of the members of parliament. The appointment is a matter left entirely to the discretion of His Majesty with one condition: the appointee must be the person commanding the confidence of the majority of the members.

In the usual course, this is a matter of numbers. That person who can say that he or she commands the confidence of the majority should become the Prime Minister. This is straightforward where every member exercises his or her own judgment in coming to a choice and expresses that choice independently.

The situation is less clear where the right to choose is ceded over to a political party, or more specifically the leadership of that party or the coalition to which it exists. It may be that the party’s choice of candidate is not the choice of some or members or even a majority of them. The question then arises whether the choice of the leadership can be taken as the choice of the members of parliament from the party or coalition.

A purist perspective would lend against such a conclusion. The choice of the individual member of parliament of whom it is that he or she has confidence in is enshrined under the Constitution. A more practical approach would inevitably favour the conclusion that the party’s choice would prevail. This could however be made the basis of a plea to His Majesty. Though we have yet to see this happen on the Federal stage, we saw such a scenario unfold in Trengganu last year. There the Regent took the position that the party’s choice, predicated as it was on the majority of assemblypersons being made up of members of the party, was not decisive in view of personal preference favouring another candidate. This incident could be viewed as having some persuasive force.

The situation is not radically different where a Prime Minister resigns. As the Constitution does not cater to such a situation specifically, it stands to reason that reference must be made to the same provisions concerning the appointment of a Prime Minister.

These provisions provide for the resignation of a Prime Minister where upon his request for the dissolution of Parliament, His Majesty declines to do so. In that case, the Prime Minister must tender the resignation of the Cabinet (of which he is a member). I would think that though the Constitution is silent, the Prime Minister is permitted to resign, even where a no-confidence scenario is not in existence. To do so, he would however have to tender the resignation of his cabinet.

The more interesting aspect of this situation centres on what it is His Majesty can or should do. Save for the no-confidence scenario, the power to dissolve Parliament is one to be exercised on advice. It could be argued that without such advice, His Majesty cannot dissolve Parliament and as such is left with only the option of appointing a new Prime Minister who in turn will form his cabinet.

However, if one were to take the events of Perak as definitive, in particular the discretion of the Sultan to determine whether confidence exists, it may be open to His Majesty to take the position that by the incumbent Prime Minister resigning for reasons that have nothing to do with his incapacity, it could be said that he no longer commands the confidence of the majority. That being the case, His Majesty has the option of dissolving Parliament.

I do not think that is the correct way of looking at things. However, after Perak, it is difficult to say what is right anymore.

Leaving aside the conundrum outlined above, there remains the final dimension of this discussion: the absolute discretion of His Majesty to appoint as Prime Minister the person whom in His judgment commands the confidence of the majority. This need not necessarily be the person who replaces the Prime Minister as the President of UMNO.

That this has occurred all this while need not make it a necessity. A convention within the Barisan Nasional and the coalition’s dictates cannot bind His Majesty especially where there is reason to ask whether the proposed candidate does in fact command the requisite confidence. Imagine if personal preferences were marshaled in a way that lent to a different outcome in His Majesty’s mind. If that were to occur, there would be little room left for UMNO to maneuver, especially after the way it has carried on about the inviolability of the royal discretion. Precedent has a nasty way of biting back.